K.S. v. Superior Court CA2/6 ( 2023 )

Filed 7/18/23 K.S. v. Superior Court CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
K.S., 2d Juv. No. B328269
(Super. Ct. Nos. 22JV00051,
Petitioner, 22JV00052, 22JV00053)
(Santa Barbara County)
v.
THE SUPERIOR COURT OF
SANTA BARBARA COUNTY,
Respondent;
SANTA BARBARA COUNTY
CHILD WELFARE SERVICES,
Real Party in Interest.
In this petition for extraordinary writ K.S. (Mother)
challenges the juvenile court’s order terminating her
reunification services and setting the matter for a selection and
implementation hearing regarding her children, K.W., K.R., and
K.R. (Welf. & Inst. Code, § 366.26, subd. (l)1; Cal. Rules of Court,
rule 8.452.) She contends the evidence was insufficient to
terminate reunification services. We deny the petition and deny
the request to stay the section 366.26 hearing, currently
scheduled for August 17, 2023.
FACTUAL AND PROCEDURAL HISTORY
Mother has a history of untreated substance abuse
preventing her from caring for her children. At birth, the two
younger children tested positive for amphetamines. She has
struggled to provide the children with stable housing; since 2019
they were “couch surfing” or sleeping in the car, in shelters and
hotels, or on the floor.
In 2020, Mother and the two younger children were housed
at an inpatient substance abuse program, Project Preemie. They
were removed after Mother had an altercation with another
client. Mother also enrolled in a Good Samaritan home that
provided housing, but she was removed from the home for drug
use.
In December 2021, Mother relapsed on methamphetamine.
On two occasions, social workers found her asleep and difficult to
wake while her children remained unsupervised. Mother
sometimes left the home to smoke methamphetamine, leaving the
younger children, then three years old and 17 months old, in the
care of the 11-year-old child, but without telling him she was
leaving.
On multiple occasions, Mother’s “on again off again”
boyfriend, Rudy G., committed physical violence against her. He
assaulted her in February 2022 in the presence of the children,
1
Further statutory references are to the Welfare and
Institutions Code.
2
leaving bruises on her face and arms. The next week, Mother
violated housing rules by sneaking Rudy G. into her room
through a window. As a result, Mother and the children were
evicted and became homeless.
The juvenile court found the dependency petitions true
(§ 300, subds. (b)(1) & (g)) and ordered reunification services for
Mother. The court ordered the children removed from Mother’s
custody. (§ 361, subd. (c)(1).)
At the six-month review hearing, the children resided in a
resource family home. Mother lived at the Bridge House shelter
and participated in substance abuse treatment and individual
therapy. Bridge House provided her services to seek long-term
housing. Mother did not appear for parenting education sessions
at first but consistently appeared thereafter. She was also
involved in another domestic violence incident with Rudy G., but
declined to seek a restraining order because she no longer had
contact with him. The court found Mother’s progress at
alleviating the causes necessitating placement “[a]dequate” and
continued reunification services.
The next month, Mother was removed from Bridge House
for violating the rules because she spent a night away from the
shelter. She then lived with her new boyfriend, John H., and
stayed with friends. John H. had a criminal record including
domestic violence and substance abuse. His most recent
conviction was a misdemeanor in 2015. His parental rights for
his own children were terminated in approximately 2021 based
on domestic violence and drug use.
The Santa Barbara County Department of Child Welfare
Services (department) warned Mother that it did not approve
John H. to be around her children. But she nevertheless allowed
him to visit them on several occasions. Mother falsely told the
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department that John H. had only one contact with the children.
Two months before the 12-month permanency hearing, the
department again reminded Mother that John H. was not to be at
visits with the children. But Mother again allowed John H. to be
present at a visit with the two younger children later that day.
At the contested 12-month permanency hearing, the
department agreed Mother made progress in her substance abuse
program, tested clean, and protected the children from emotional
harm. She successfully completed a residential treatment
program, graduated from Family Drug Treatment Court, and
completed domestic violence education and a parenting program.
But the Tri-Counties Regional Center discontinued services for
the youngest child because Mother failed to participate. At the
time of the hearing, Mother had resumed living at Bridge House,
which allowed overnight visits with the children twice a week.
Mother testified she met John H. at an N.A. meeting. He
remained her boyfriend and she was pregnant with twins he
fathered, due on June 12, 2023.
Between September and December 2022, Mother worked
part-time as a home care aide. She planned to continue working
after the birth of her twins if she was able. Mother also told the
court she would bring the twins with her on visits with the other
children but would not bring John H.
The department and counsel for the three children asked
the court to terminate Mother’s reunification services and set a
section 366.26 hearing. The court found Mother had not made
substantial progress in alleviating the causes that led to removal
of the children nor demonstrated the capacity and ability to
complete the objectives of the treatment plan. (§ 366.21, subd.
(g)(1)(B) & (C).) It also found that return of the children to
Mother’s physical custody would create a substantial risk of
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detriment to the children’s safety, protection, or physical and
emotional well-being. (§ 366.21, subd. (f)(1).) The court
terminated reunification services and set a selection and
implementation hearing (§ 366.26).2
DISCUSSION
Mother contends the juvenile court erred when it
terminated reunification services. We disagree.
We review the juvenile court’s determinations for
substantial evidence. (J.H. v. Superior Court (2018) 20
Cal.App.5th 530, 535.) We resolve all conflicts and inferences in
favor of the decision and do not reweigh the evidence. (In re I.J.
(2013) 56 Cal.4th 766, 773.) We may stay the section 366.26
hearing only upon “an exceptional showing of good cause.” (Cal.
Rules of Court, rule 8.452(f).)
Reunification services
At the 12-month permanency hearing, the juvenile court
may continue the case for additional reunification services, not to
exceed a total of 18 months from the date physical custody was
removed, but “only if it finds that there is a substantial
probability that the child will be returned to the physical custody
of their parent or legal guardian and safely maintained in the
home within the extended period of time.” (§§ 366.21, subd.
(g)(1); 361.5, subd. (a)(3)(A).) To continue the case, the court
must find: (A) the parent “consistently and regularly contacted
and visited with the child,” (B) the parent “has made significant
progress in resolving problems that led to the child’s removal
from the home,” and (C) the parent “has demonstrated the
2
The court continued reunification services for Kevin W.,
the oldest child’s presumed father. He is not a party to this writ
proceeding.
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capacity and ability both to complete the objectives of their
treatment plan and to provide for the child’s safety, protection,
physical and emotional well-being, and special needs.” (§ 366.21,
subd. (g)(1).)
“ ‘[S]imply complying with the reunification plan by
attending the required therapy sessions and visiting the children
is to be considered by the court; but it is not determinative. The
court must also consider the parents’ progress and their capacity
to meet the objectives of the plan; otherwise the reasons for
removing the children out-of-home will not have been
ameliorated.’ ” (Georgeanne G. v. Superior Court (2020) 53
Cal.App.5th 856, 867.) Continuing reunification services beyond
the 12-month hearing is “disfavored.” (Tonya M. v. Superior
Court (2007) 42 Cal.4th 836, 845.)
To Mother’s credit, the department concluded she visited
the children consistently, stayed free from illegal drugs, and
protected the children from emotional harm. But the department
also determined Mother did not demonstrate her ability to safely
maintain her children because she allowed John H. to be around
them, failed to participate in developmental services for the
youngest child, and was unable to provide them with a safe and
stable home. Mother failed to prioritize finding housing despite
knowing it was important for her reunification with the children.
Mother also did not adequately comply with psychological
treatment because, although she attended therapy, she failed to
maintain healthy boundaries by allowing contact between John
H. and the children.
The juvenile court found Mother had not made substantial
progress in resolving the problems that led to removal of the
children. (§ 366.21, subd. (g)(1)(B).) The court noted that Mother
participated in programs that might have helped her obtain
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permanent housing, but her poor choices removed her from those
programs and returned her to “square one” regarding her search
for housing. The court believed that family maintenance for the
children at Bridge House would place them at risk and not be
appropriate. This conclusion was supported by Mother’s
testimony that people brought drugs to Bridge House, there were
overdoses there, and it was unsafe there for her and her children.
Mother did not “demonstrate[] the capacity and ability both
to complete the objectives of [her] treatment plan and to provide
for the child[ren’s] safety, protection, physical and emotional
well-being, and special needs.” (§ 366.21, subd. (g)(1)(C).) At the
time of the 12-month hearing, less than four months remained
before the 18-month deadline. The evidence did not establish
that Mother would secure stable and safe housing for the children
before this deadline. Mother failed to comply with the rules of
her housing by engaging in an altercation with another resident,
using drugs, sneaking in a boyfriend, then spending a night away
from Bridge House, resulting in her and the children becoming
homeless.
Mother also violated the department’s directives by
choosing to associate with an individual with a history of drug
use and domestic violence who posed a risk to her sobriety and
the children’s safety. Mother and John H. were about to give
birth to twins, and he would remain part of her life. The juvenile
court appropriately wondered how Mother would “somehow
separate [the twins] from [John H.] and have visits with her
children apart from [him].” The juvenile court’s finding is
supported by a “pattern of instability, which included no
permanent housing . . . and inappropriate choices of living
partners.” (In re John V. (1992) 5 Cal.App.4th 1201, 1212; see In
re L.B. (2023) 88 Cal.App.5th 402, 413 [homelessness is properly
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considered if not the only factor].) Substantial evidence supports
the juvenile court’s conclusion that it was not substantially
probable the children would be returned to Mother’s custody and
safely maintained in the home.
Georgeanne G. v. Superior Court, supra, 53 Cal.App.5th
856, upon which Mother relies, does not support writ relief here.
There, our colleagues in Division 7 concluded that the mother
residing with a man who had raped his prior wife did not
establish a risk of danger toward the mother or the minor for
purposes of returning the child to her custody (§ 366.21, subd.
(f)(1)). (Georgeanne G., at pp. 868-869.) The court noted that
because Georgeanne reported to law enforcement an assault by a
previous partner and obtained a restraining order against him,
there was no “reason to believe, if violence were threatened,
Georgeanne would be a passive victim and unable to protect” the
child. (Id. at p. 869.) But here, Mother continued to see Rudy G.
after he assaulted her in the presence of the children and she
declined to obtain a protective order. She then entered an
ongoing relationship with John H., who also had a history of
domestic violence.
Georgeanne G. does not prohibit the court from considering
the prior criminal and custody issues of a parent’s companion
when determining whether to continue reunification services.
Mother had an ongoing relationship with John H. Despite the
department’s direction, Mother continued to allow him contact
with the children. Substantial evidence supports the termination
of reunification services.
Return of custody
It is unclear whether the writ petition challenges the order
declining to return the children to Mother’s custody after the
12-month permanency hearing. (§ 366.21, subd. (f)(1).) At the
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hearing, the department stated the contested issue was
continuation of reunification services, and “[t]here has been no
request or indication that the children be immediately placed
with the mother at today’s hearing.” Mother did not dispute that
assertion.
Because she did not raise the issue of immediate return of
the children to her custody in the trial court, Mother has forfeited
this argument. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
Conclusion
“[I]n order to prevent children from spending their lives in
the uncertainty of foster care, there must be a limitation on the
length of time a child has to wait for a parent to become
adequate.” (In re Marilyn H. (1993) 5 Cal.4th 295, 308.)
Substantial evidence supports termination of reunification
services for Mother and setting the case for a section 366.26
hearing.
DISPOSITION
The petition for extraordinary writ is denied. The request
to stay the section 366.26 proceedings is denied.
NOT TO BE PUBLISHED.
BALTODANO, J.
We concur:
GILBERT, P. J. CODY, J.
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Gustavo E. Lavayen, Judge
Superior Court County of Santa Barbara
______________________________
Law Office of James C. Ames and James C. Ames for
Petitioner.
Rachel Van Mullem, County Counsel, Lisa A. Rothstein,
Deputy County Counsel, for Real Party in Interest.
No appearance for Respondent.